Ask a Divorce Lawyer topics for March 23: Distribution of retirement money earned pre-marriage; child support wage withholding; child support surcharges; divorcing the same woman twice; attorney malpractice; child support modifications while deployed

Among the Ask a Divorce Lawyer questions answered today by Cordell & Cordell attorneys:

• Will my wife get some of my retirement money that was earned prior to us getting married?
• If child support is being withheld from my paycheck, can any more be taken from my bank account? Can I instead pay in lump sumps?
• My support is paid off, but the state took a lot of money off our tax return for "surcharges" and we can't figure out why or how they reached that amount?
• I re-married the same woman I divorced earlier in my life. Now we are divorcing again. Is she entitled to alimony from both marriages?
• My attorney didn't handle my divorce correctly. Can I fight the judgment?
• My child support payments increased threefold while I was deployed overseas. These  changes were made in court even though they knew I was at war. What can I do?

Question:

Will my wife get some of my retirement money that was earned prior to us getting married?

Answer:

Because I do not know all the facts of your case, I cannot give you specific advice, only general information.

In general, any money earned during the marriage is marital property, which would be divided in a divorce. Any property, including retirement money, acquired prior to the marriage may be considered separate property. It is unlikely that a wife would be able to get a court to distribute pre-marital retirement money.

This answer should not be construed as creating an attorney client relationship. If you need additional legal advice or representation, please contact an attorney in your area immediately. Cordell & Cordell, P.C. has many attorneys in Missouri who would be glad to review your case if you so choose.

Question:

I currently pay child support and it is deducted from my check weekly for arrearages. If they are withholding from my paycheck, can any more child support be taken from my bank account? Can I instead pay in lump sumps?

Answer:

I am not licensed in Ohio and therefore I cannot give you specific legal advice, only general information.

Wage withholding is one of the most common ways to pay child support arrearages. From your question it sounds like you would like to pay a lump sum to remove all or most of your arrearages. In Missouri, where I practice, if the custodial parent wishes to take a lump sum now for the past arrearages, they can file an affidavit of credit for child support payments stating that they have received payment for the debt owed. This will only forgive child support owed to the individual though, and not any support which may be owed the State (depending on how your State operates, once you go into arrearages, the State may pay child support to the mother and you then owe the State). Your state may have other ways to pay a lump sum or even a larger amount in each payment to bring down your arrearages faster.

You should speak to an attorney in your area immediately if you need additional legal advice or representation. This answer should not be construed as creating an attorney client relationship. 

William Halaz, III is a Staff Attorney in the Arnold, Missouri office of Cordell & Cordell, P.C. Mr. Halaz is licensed to practice in the state of Missouri. Mr. Halaz received his bachelor's degree in Political Science from Southeast Missouri State University. Then continuing his education, received his Juris Doctor from St. Louis University’s School of Law.

Question: 

My husband's son lives in Michigan but Montana has collected child support from his check because that's where we live. The support is paid off, but Michigan took a lot of money off our tax return for "surcharges" and we can't figure out why or how they reached that amount?

Answer:

Yes, Michigan can garnish tax returns to collect child support; yes, your husband can get a copy of his child support account from Michigan; and yes, it is possible, but rare, for Michigan to waive its surcharge or discharge support arrears.

As for the tax returns, Michigan and Montana use the Uniform Interstate Family Support Act (UIFSA), which is a set of laws to enforce child support orders between states. In a nutshell, if registered with the state (Montana), a child support ordered issued in another state (Michigan) is enforceable in that state, even if the state would not have ordered the particular support provisions. Michigan’s support laws include the right for the Friend of the Court to garnish wages, accounts and tax returns to collect unpaid support. Most states have the same laws because the laws come from Title IV-D of the Social Security Act, a set of federal laws that fund state child support agencies (with the condition that the agencies enact these laws). Your husband should have received a notice of the state’s intent to garnish his tax return. If he did not, that may be a basis to set aside the garnishment. However, you must have an attorney review all of your paperwork to determine the proper course of action.

As for the account report, the Michigan State Disbursement Unit monitors all payments and disbursement for child support paid through the state. So long as your husband paid his support through the state (and not his ex directly), he should have a report. Try calling the local Friend of the Court office. Ask for the child support administrator (or, for larger counties, the support caseworker), and tell that person you want a printout from MSCES for the entire account history. This will be a printout from the date the state opened the account. Make sure the printout reflects every payment your husband made. Raise any errors with the administrator (or caseworker) immediately.

As for getting the money back, child support payors’ opportunities are extremely limited in Michigan. Under the Support and Parenting Time Enforcement Act, the payor can only modify support retroactively from the date of filing a motion to modify the support order, unless the other party agrees. However, the Friend of the Court may waive or abate surcharges and discharge arrears owed to the state (e.g., for processing fees) upon notice and for “good cause” shown. Moreover, beginning July 1, 2005, the Friend of the Court must not assess a surcharge on a support order if the order was still active (i.e., the children were still minors) and the payor had paid at least 90% of the prior 6 months’ support. Finally, effective January 8, 2010, Michigan suspended the surcharge rules for one year. Therefore, your husband should review his MSCES account report carefully to determine  whether (1) the SPTEA required the Friend of the Court to not assess the surcharge and/or (2) he has a “good cause” basis to request a waiver and discharge of arrears.

This is only general information. Please discuss your case with an attorney in your area immediately for legal advice. I am a Michigan attorney and cannot give you advice for your case or the laws as they apply to your case without meeting you. Do not rely on this answer as establishing an attorney-client relationship. We do practice law in Michigan and would be happy to meet you. Thank you for submitting a question to Cordell & Cordell, P.C.

Question:

I re-married the same woman I divorced earlier in my life. Now we are divorcing again. Is she entitled to alimony from both marriages?

Answer:

Probably not. In most states, the length of the marriage is one factor to consider when determining what amount of spousal support, if any, to award. This is a factor in Arizona. However, the length of the marriage means the current marriage, not the length of the relationship.  Nevertheless, I have seen caselaw to the effect that judges should consider the length of the relationship (i.e., both marriages) under the “general principles of equity” factor. In majority states like Arizona,  this can be dispositive.

Therefore, you should be prepared to argue why, the length of your marriage aside,  awarding your spouse support is also inequitable. Pay particular attention to the other support factors, like your age, health, income, debt, employability, standard of living, and conduct during the marriage, too.

This is only general information. Please discuss your case with an attorney in your area immediately for legal advice. I am a Michigan attorney and cannot give you advice for your case or the laws in your state, Arizona. Do not rely on this answer as establishing an attorney-client relationship. Thank you for submitting a question to Cordell & Cordell, P.C.

Question:

My attorney didn't handle my divorce correctly, which has caused me to lose a lot of money. Can I fight the result passed down as a judgment? Does it matter if my ex-wife said she only stayed with me longer to get more of my retirement and property?

Answer:

The opportunities to set aside a divorce judgment are extremely limited in Michigan, and you need to have an attorney assess your case as soon as possible because they are time-limited, too.

In short, in Michigan, property and debt division orders are final and are non-modifiable absent a showing of fraud, mutual mistake or duress. The party must file the motion within a “reasonable time” and not later than one year from the date of the judgment. To file a new action against the attorney for malpractice (assuming the attorney committed malpractice), the deadline is generally two years from the date of the malpractice. To file a new action for fraud or some other personal tort, the deadline ranges from one year to three years. What the ex-wife says about staying married is not dispositive, and unhelpful, unless it shows fraud or otherwise reflects on one of the bases to set aside the judgment or to file a new action against the party or the attorney. See, e.g. MCR 2.612.

This is only general information. Please discuss your case with an attorney in your area immediately for legal advice. I am a Michigan attorney and cannot give you advice for your case or the laws as they apply to your case without meeting you. Do not rely on this answer as establishing an attorney-client relationship. We do practice law in Michigan and would be happy to meet you. Thank you for submitting a question to Cordell & Cordell, P.C.

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

Question:

My child support payments for my one kid have increased threefold in the past year even though my pay has not increased. I was deployed overseas while these changes were made in court even though they knew I was at war. Please tell me if this all sounds out of order, and how I should proceed?

Answer:

First, I must preface my answer that I am licensed to practice law in Nebraska and can only give you some general information regarding your situation. I would suggest you consult a domestic litigation attorney licensed in Louisiana before taking action.

I am not going to comment on whether your situation is ‘out of order’ or not, as I don’t know enough details about the situation. As far as what you can do moving forward, you might think about a few options. One is a Motion to Set Aside the Judgment. You could allege that you are in the possession of evidence, which if known at trial, would have affected the outcome. This motion is time sensitive, most jurisdictions only allow it within 30 days after the judgment or ruling.

Another option would be a Motion to Modify the Child Support. This is another way for you to get in front of the judge and show him or her what your pay is and why the child support should be modified downward.

Regardless of what action you take, it should be soon. Most jurisdictions do not allow child support to be retroactively adjusted, so once it accrues on the first of the month there is no changing it. However, child support can sometimes be modified retroactively to the first day of the month after you file. So if you file in March, your March child support will not be changed, but once you get into court April’s could be.

Nancy R. Shannon, a Nebraska native, is an Associate Attorney in the Omaha, Nebraska office of Cordell & Cordell, P.C. She is licensed in the state of Nebraska where her primary practice is exclusively in the area of domestic relations. Ms. Shannon received her Bachelor of Arts degree from Doane College and her Juris Doctor from University of Nebraska – Lincoln, where she was a finalist in a Moot court competition and active in Client Counseling activities.

Comments (0)